Occasionally the trial of the issue or as in Rule 18A summary trial under the British Columbia Rules, a case may reach determination before the notice period has expired. The issue then becomes how to fashion a remedy which considers that the mitigation obligation is still ongoing, given the consequence of a potential failure to mitigate beyond the decision date.

Such were the facts in Szczypiokowksi v Coast Capital Savings, a decision of the B.C. Supreme Court in October of 2011. The notice period had been set at 18 months, the trial being 9 months after dismissal. On these facts, the court ordered no discount, given that the plaintiff was 62 years of age and that the defence had not shown it was reasonably likely that the plaintiff would find comparable employment. His age and his proximity to retirement were seen as the dominant factors as was the noted lack of a reference letter from an employer after an 18 year working history.

A similar conclusion was reached in Systad v Ray-Mont Logistics in which the court determined that there should be given the ever so modest discount of 2 weeks applied to the remaining 12.5 months of notice, given the plaintiff’s specialized job function of a Container Life Operator, his age of 65 and the possibility of further knee surgery.

A leading case on this subject is the January 1991 decision of Bouck, J. in Smith v Pacific National Exhibition, which was a summary trial under Rule 18A. The following rules were summarized in this case:

The fact that the notice period has yet to expire is not, in itself, a reason to refuse to hear the case in a summary fashion.

Where the claim is based on a fixed term, the court may consider a reduction of the sum outstanding, based on the prospect of new employment.

The same applies to the residual balance of an unexpired notice period.

The onus of proof of the likelihood of new employment rests upon the defence.

Both negative and positive factors affecting the contingency will be assessed.

In the above case, given a 22 month notice period expiring in May 1992, and a trial date of January 1991, a one month reduction was effected.

A five month reduction was found as appropriate in Foster v Kockums Cancar, a 1993 decision of the B.C. Court of Appeal.  The trial was held five months into the notice period. The Court of Appeal reduced the trial award of 20 months to 15, determining the need for such a contingent reduction, stating:

there must be built into the notice period a contingency factor that recognizes the possibility that the employee will obtain employment within the notice period

It stands to reason that the longer the unexpired period of the notice period, the more powerful is the case for a contingent reduction in the award. ¹

The Ontario experience has been different. In such circumstances, the courts have sometimes applied a trust to the plaintiff’s subsequent earnings requiring him to pay back such sums to the employer post-hearing as was the case in Bull v Proctor Redfern, a 1996 decision of Molly, J.

The same process was followed in Camaganacan v St. Joseph’s Printing, a decision of Whitaker, J. in September 2010 and again in Yip-Young v L3, an October 2012 decision also of Whitaker, J. and also in Correa v Dow Jones, an August 1997 decision of Sanderson, J.

The November 2010 decision of Gray, J. in Russo v Kerr took issue with this approach, primarily upon the basis that the employer was left with no way to scrutinize the plaintiff’s later job search efforts and results. In this case, the judge gave judgment to the date of the motion and adjourned the balance of the claim for a continued hearing after the notice period had expired. This is referenced as the “partial summary judgment approach”.

The three views of this issue are then:

1. Reduce the award by a reasoned contingent discount;
2. Apply a trust;
3. Consider partial summary judgment.

These three views were considered in 2015 in Paquette v. TeraGo Networks Inc, in which case a trust was imposed. Perell, J. was not in favour of the partial judgment concept:

 I reject the Partial Summary Judgment Approach as cynical, patronizing, unfair, impractical, and expensive.

The same view was held by the Ontario court in its 2023 decision of Milwid v IBM, apparently influenced by the lack of any interviews obtained from over 100 job applications.

This issue was viewed again in 2018 in Mikelsteins v. Morrison. In the latter case, the partial judgment was approved, given various factors including the length of the unexpired notice period, the plaintiff’s context of age and skill set and the expiry of a restrictive covenant.